Publication of video recordings of an employee – requirement of consent

BAG, judgment dated 19.2.2015 - 8 AZR 1011/13

Under Section 22 KUG (law governing copyright to art and photography), pictures of employees are only permitted with their written consent. Consent issued without restrictions does not automatically expire upon ending of the employment relationship. Nevertheless, it can be revoked if a plausible reason is provided for this.

The claimant was employed by the defendant as a fitter. When preparing a new internet site, the defendant had an advertising film made which presented its company. The claimant can also be seen in two short sequences of the video concerned. Like 31 other employees, the claimant had issued a “written declaration of consent” to this. Following his departure from the company, the claimant revoked any “consent possibly issued” to publication of his picture, and requested the defendant to remove the video from the homepage. The defendant complied with this request, but reserved the right to again include the advertising film on the company website at a later date. The claimant took legal action against this.

The Labour Court dismissed the legal action in part. The claimant’s appeal to the State Labour Court as well as his appeal on a point of law were both unsuccessful.

Requirement of the written form for the consent?

The BAG also initially concerned itself with the question of the requirement of the written form in regard to any consent to be issued. The starting point here is the KUG. This has primacy in the case at hand and does not establish any formal requirements for the consent. At the same time however, this constitutes a recognisably inconsistent assessment compared to the requirements on consent in Section 4a Subsection 1 Sentence 3 BDSG, which fundamentally requires the written form.

Conflict solution through constitutionally conform interpretation of Section 22 KUG

In the opinion of the BAG, which agrees with the established case law of the Federal Constitutional Court in this respect, this conflict can be solved through constitutionally conform interpretation of Section 22 KUG. The respective court must therefore always check on a case-by-case basis whether   consent is required, and if so in what form, taking account on the one hand of the interest of the employer in use and, on the other hand, the right of the person concerned to informational self-determination.

Significance of the right to informal self-determination creates the requirement of the written form for consent

Given the importance of the employee’s right to also be able to exercise his/her basic right of informational self-determination in the employment relationship, the result of any such weighing up is that the consent of the employees requires the written form, even and especially in the employment relationship. Only in this way is it possible to show clearly that the consent of the employees to publication of their pictures is given independently of the respective obligations under the employment relationship entered into, and that the issuing or refusal of consent must not have any consequences for the employment relationship. In other respects, neither the basic fact that employees are dependent staff nor the right of the employer to issue instructions would stand in the way of the possibility of informational self-determination.

Consent does not automatically lapse upon ending of the employment relationship

The BAG added that effectively issued consent of the claimant, as defined in Section 22 KUG, likewise does not expire automatically upon ending of the employment relationship. According to the wording, consent had been issued without calendar-related limitation, and was likewise not restricted just to the term of the employment relationship.

Possibility of revocation only given the presence of an “important reason”

Once issued, consent can only be revoked (retrospectively) if the employee can present an “important reason” for this. This ruling applies to cases where the employee has not been singled out and advertising based on his/her specific person, but rather the film has been made for purely illustrative purposes. The result of the overall weighing-up required in such cases is therefore that the employee revoking must be required to state a reason, in the form of a statement, as to why he/she now wishes to exercise his/her right to informational self-determination in contrast to when issuing the consent many years previously. In the case at hand, the claimant had not presented a correspondingly plausible explanation for revocation.

Summary

From a company perspective, written consent should be obtained from the employee in all cases. This must describe the specific purpose of use of the film as precisely as possible. This form of consent does not then automatically expire upon ending of the employment relationship. A check must therefore be carried out in each individual case as to precisely how the employee has been included in the video, what circumstances have changed compared to the time of the issuing of his/her consent, and whether an important reason, based on personal rights, entitles him/her to revoke as an exception.